The Supreme Court of Canada ruled Friday that a provision of an Ontario election finance law violated the constitutional right to vote, finding the provision to be invalid and of no effect.
Writing for the slim five justice majority, Justice Andromache Karakatsanis contended that the different limits for political parties versus third parties under the law failed to “ensure wealth cannot be mobilized to drown out other voices.” Therefore, the court held that the limit on third parties created an “absolute disproportionality, or a disproportionality that is so marked on its face,” which violated Section Three of the Canadian Charter of Rights and Freedoms.
The four dissenting justices disagreed with the majority’s characterization. Chief Justice Richard Wagner and Justice Mary Moreau’s dissenting opinion found that the current $600,000 per 12-month limit on third-party spending still provided an opportunity for meaningful participation in political discourse. The justices asserted that election finance limits are part and parcel of an egalitarian model, and the definition of “political advertising” in the law was narrow enough to allow third parties to reach out to citizens in many different ways.
In a separate dissent, Justices Malcolm Rowe and Suzanne Côté disagreed with the majority on whether an “expressive component” of the Section Three right to vote existed. The justices found that no such right exists and that the majority’s characterization of Section Three overlapped with the freedom of expression, which is protected under Section Two(b) of the charter.
The provision, Section 37.10.1(2) of the Ontario Election Finance Act, set third-party spending limits of $600,000 on issue-based political advertising in the 12 months before an election month. Importantly, the act set different limits for political parties, setting a limit of one million dollars for the six months before an election month and no limits on the six months before that. The legal issue before the court was whether the limit would drown out the voices of third parties on political issues from reaching citizens, violating the right to vote under Section Three of the charter.
The court in prior jurisprudence has broadly interpreted Section Three’s right to vote to include “free and open participation, fairness in political discourse, and citizen participation in political life.” This includes an informational element, or the right for citizens to be able to vote in an informed way by hearing different views.
The case marked the second time the Ontario election law had been challenged in court. In 2021, an Ontario judge struck down the law, finding that the third-party spending limit violated the freedom of expression protected under the charter. In response, the Ontario government invoked the notwithstanding clause and reintroduced the bill with the exact same language. The law was then challenged by various civil society groups, unions, and individuals, eventually reaching the Canadian Supreme Court.
The notwithstanding clause, or Section 33 of the charter, is a uniquely Canadian legislative override not found in constitutions of other constitutional democracies. Once the language of Section 33 is added to a bill and then enacted as law, it allows the legislature to infringe certain charter-protected rights such as the freedom of expression, freedom of religion, and the right to equality. The clause has a built-in time limit of five years, after which it expires and requires re-enactment to have effect. Five years is also the constitutionally mandated maximum term of a legislature.